HomeMy WebLinkAbout4094A ORDINANCE of the City Council of the
city of Kent, Washington, adopting a six-month
moratorium within the city of Kent prohibiting the
establishment, location, operation, licensing,
maintenance or continuation of marijuana
processors, producers, and retailers claiming
authorization under Chapter 69.50 RCW or any
other law of the state of Washington and setting a
date for a public hearing on the moratorium.
RECITALS AND PRELIMINARY FINDINGS OF FACT
A. On November 30, 1998, Washington voters approved Initiative 692,
now codified as Ch. 69.51A RCW, which created a limited affirmative
defense to certain marijuana -related criminal charges under state law if
the person charged could demonstrate that he or she was a qualifying
patient or designated provider as those terms are defined in Ch. 69.51A
RCW. Ch. 69.51A RCW has been amended a number of times. Most
recently, the state legislature passed a third amendment to the law,
ESSSB 5073, Chapter 181, Laws of 2011, portions of which the Governor
vetoed. The newly amended law took effect on July 22, 2011. As a result
of Ch. 69.51A RCW and its amendments, the City experienced an influx of
businesses which, either in the form of medical marijuana dispensaries or
collective gardens, distributed marijuana.
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B. On June 5, 2012, after numerous public hearings, the City Council
passed Ordinance 4036, prohibiting medical marijuana collective gardens
and dispensaries in each zoning district within the City.
C. On November 6, 2012, the voters of Washington approved Inative
502. I-502, which amended Ch. 69.50 RCW, provides that the state
licensed production, processing and retail sale of marijuana does not
constitute a crime under state law. I-502 requires the state Liquor Control
Board ("LCB") to develop rules for the implementation of the licensing
provisions of I-502. The LCB recently finalized the rules.
D. While the state licensed production, processing and retail sale of
marijuana does not constitute a crime under state law, the production,
processing, distribution and possession of marijuana continues to be a
violation of the federal Controlled Substances Act ("CSA"). Marijuana
continues to be a Schedule I controlled substance under both state and
federal law. In fact, the Kent Police Department partners with the federal
Drug Enforcement Agency to investigate federal drug crimes, including
crimes related to the manufacture, distribution and possession of
marijuana, which occur within the City and the surrounding community.
E. While the Department of Justice ("DOJ") issued a letter on August
29, 2013, indicating that enforcement of marijuana related regulations in
Washington should primarily rest with state and local law enforcement
agencies, the DOJ also stated that if robust measures were ineffective to
guard against certain identified harms or in the event of reluctance on the
part of the state to ensure against the occurrence of identified harms, the
federal government reserved the right to enforce federal laws despite the
state's regulatory structure, and to challenge the state licensing structure
itself. In a letter dated August 30, 2013, and in response to the letter
from the DOJ, the National Sheriff's Association, the International
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Association of Chiefs of Police, the National Narcotic Officers Association
Coalition, the Major Cities Chiefs Police Association, and the Association
State Criminal Investigative Agencies expressed extreme disappointmei
in the position of the DOJ.
F. I-502 required the LCB to establish rules to determine the number
of state licensed retail outlets that may be located in each county. No
similar provision was made for state licensed production or processing.
Recently, the LCB determined that it would issue three state licenses for
the retail sale of recreational marijuana in the city of Kent. For production
and processing, the location of these businesses will be market-driven.
Thus, production and processing land uses may be spread across the state
or may be concentrated in one city or county, which could include Kent.
G. Neither I-502 nor the rules established by the LCB address the
location within a city of state licensed production, processing or retail sales
facilities, other than a 1000 foot buffer from elementary schools,
secondary schools, playgrounds, recreation centers, child care centers,
public parks, transit centers, libraries, or game arcades.
H. In 2005, in Gonzales v. Raich, 545 U.S. 1 (2005), the United States
Supreme Court determined that the intrastate regulation of marijuana is a
valid exercise of the power of Congress and that in the event of a conflict
between a state law that permits marijuana production, processing,
distribution and possession and the federal CSA, the federal CSA will be
deemed supreme. Therefore, it is unlikely that a court will determine that a
state law can require a city to permit a land use that constitutes a federal
crime under the federal CSA.
I. As anon -charter code city, Kent has specific authority to determine
the appropriate uses of land through its zoning authority. I-502 contained
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no language specifically limiting the authority of cities to determine
whether to permit marijuana land uses within city boundaries. In addition,
the LCB rules provide that the issuance of a state license shall not be
construed as a license for, or an approval of, any violations of local rules or
ordinances including, but not limited building and fire codes, zoning
ordinances, and business licensing requirements.
J. The production, processing, and retail sale or marijuana, which
remains illegal under federal law, has only recently become a permitted
activity under Washington state law. Colorado is the only other state that
permits the retail production, processing and sale of marijuana. Thus, the
land use impacts associated with state licensed production, processing and
retail sale of marijuana have not been established and are not understood.
K. While I-502 purports to create a system under state law to legally
produce, process, and sell marijuana, the operators of marijuana -related
businesses that have held themselves out as legally operating businesses
have consistently demonstrated an unwillingness to follow City
regulations. For example:
• Medical marijuana dispensaries in the City remained in operation
despite two moratoria on the maintenance of medical marijuana
dispensaries.
• Medical marijuana dispensaries ignored City business licensing
requirements or engaged in deception when completing business
license applications.
• Medical marijuana operators remained in operation despite the
pendency of criminal charges related to violations of City
ordinances.
• Property owners who leased space to medical marijuana
dispensaries have been unwilling to require tenants to operate
within the bounds of the City's zoning code.
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L. In at least one instance, a medical marijuana dispensary located in
the City was robbed at gun point, and the owner of the dispensary was
reluctant to report the crime to the Kent Police Department.
M. The City Council has determined that the passage of asix-month;
moratorium on the production, processing or retail sale of marijuana will]
serve the public health, safety and welfare.
N. The City Council has also determined that the passage of a
month moratorium on the issuance of any business license for thel
production, processing or retail sale of marijuana will serve the public;
health, safety and welfare.
O. The City Council has also determined that during the six-month
moratorium, staff shall develop and process a permanent zoning code
amendment that shall prohibit, in all zoning districts of the City, any land
use that constitutes a violation of a state or federal law, unless specifically'
permitted in a specified zoning district, as well as a permanent amendment'
to the business license code, that shall prohibit the issuance of a business
license to any business that constitutes a violation of a state or federal
law, unless the business is specifically permitted in the Kent City Code.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS.
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SECTION Am - Preliminary Findings of Fact. The recitals an
findings of fact set forth above are adopted as the city councs prelimina
findings in support of the moratorium imposed by this ordinance. The ci
council may, in its discretion, adopt additional findings at the conclusion
the public hearing referenced in Section 5 below.
SECTION 2. -Moratorium Imposed. Pursuant to the provisions
Article 11, Section 11 of the Washington State Constitution, and RCW
35A.63.220 and RCW 36.70A.390, a moratorium is hereby enacted
prohibiting within the city of Kent the establishment, location, operation,
maintenance, continuation, permitting or licensing of any producer,
processor or retail seller of marijuana that is licensed by the state of
Washington pursuant to I-502 and Chapter 69.50 RCW. No building
permit, occupancy permit, or other development permit or approval shall
be issued for any of the purposes or activities listed above, and no
business license shall be granted or accepted while this moratorium is in
effect. Any land use permits, business licenses or other permits or
authorizations for any of these operations that are issued as a result of
error or by use of vague or deceptive descriptions during the moratorium
are null and void, and without legal force or effect.
SECTION 3. - No Nonconformin_q Uses. No use that constitutes or
purports to be a use prohibited in Section 2 this ordinance, that was
engaged in prior to the enactment of this ordinance shall be deemed to
have been a legally established use under the provisions of the Kent City
Code and that use shall not be entitled to claim legal nonconforming
status.
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SIMIVIV qZ- Effective Period for Moratorium. This moratorium
shall take effect beginning five days from the date of its publication, and
shall be in effect for a period of six months thereafter, and shall
automatically expire at the conclusion of that six month period unless the
same is extended as provided in RCW 35A.63.220 or RCW 36.70A.390, or
unless terminated sooner by the city council.
SECTION 5. -Public Hearing. Pursuant to RCW 35A.63.220 and
RCW 36.70A.390, the city council will hold a public hearing regarding this
moratorium at the city council's regular meeting, at 7:00 p.m. in Council
Chambers, Kent City Hall, on Tuesday, January 7, 2014, or as soon
thereafter as the business of the city council shall permit.
SECTION 6. - Referral to Staff. The planning director is here
authorized and directed to develop and recommend an appropriate land
use regulation that will prohibit within the City any land use that
constitutes a violation of federal or state law, unless otherwise specifically
identified as permitted in the Kent City Code. The finance director is
hereby authorized and directed to develop and recommend appropriate
business licensing and other regulations that will prohibit within the City
any business that constitutes a violation of federal or state law, unless
otherwise specifically identified as permitted in the Kent City Code.
SECTION 7. -Severability. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this
ordinance and the same shall remain in full force and effect.
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SI MI UIV arg- Corrections by City Clerk or Code Reviser. Upon
approval of the city attorney, the city clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; references to other local, state or federal laws,
codes, rules, or regulations, or ordinance numbering and
section/subsection numbering.
SECTION 9. -Effective Date. This ordinance shall become effective
five (5) days after its publication. The city clerk is directed to publish a
summary of this ordinance at the earliest possible publication date.
ATTEST:
RONALD F.
APPROVED AS
THUR ��PA'
ORE„CiTY C
ATRICK, �4CTING CITY ATTORNEY
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PASSED: day of 2013.
APPROVED: day of y 2013.
,
PUBLISHED: day of 2013.
I hereby certify that this is a true copy of Ordinance No.
passed by the city council of the City of Kent, Washington, and approved
by the Mayor of the City of Kent as hereon indica pd.
RONALD F.
RE,
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P:\Civil\Ordinance\Moratorium Marijuana Land Uses 2013.DRAFT.docx
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